Tribunal decision responses: Case is 'ultimately political' and 'not a victory for ISC'

14 Oct 2011 News

The Upper Tribunal’s judgment in the public benefit case should not be seen as a victory for the Independent Schools Council, some sector commentators have said.

Karl Wilding, head of research at NCVO

The Upper Tribunal’s judgment in the public benefit case should not be seen as a victory for the Independent Schools Council, some sector commentators have said.

Karl Wilding (pictured), the NCVO’s head of research, said the real winners in the case are “charities and the public”.

Karl Wilding told civilsociety.co.uk that the claim of victory by the lawyers representing the Independent Schools Council is misplaced, because the true picture of the verdict is much more nuanced. The NCVO was an intervener in the case.

‘More clarity’

Wilding said: “Charities have won because they now have clarity about what to do on public benefit, and the public have won because this reinforces the fundamental principle that public benefit is what charity is about.”

“It’s also useful for charities because we now have concrete examples, in paragraph 196 of the judgment, of what you have to do to enable those that cannot afford the fees, to benefit from the service.”

He advised any charity that charges fees or is considering doing so, to read the judgment carefully. “The sector is struggling, and more and more organisations are moving to a fee-paying model,” he said. “Trustees now have a proper framework for making decisions.”

‘No clarity’

But law firm Stone King lamented the fact that the verdict “does not deliver the absolute clarification of charity law that many, including we at Stone King, had hoped for”.

Partner Jonathan Burchfield said: “We must first say that we do not regard this judgment as a ‘victory for the ISC’ in quite the way that some have already suggested.

“There is much in the judgment that supports the Charity Commission’s interpretation of the law and recognises the difficult role it was given by the Charities Act 2006. However, it is clear that the Commission’s guidance will need to be rewritten and to be less prescriptive than has been the case.”

He went on: “The Tribunal was at pains to emphasise that its decision will not please any of the parties.  There can ultimately be no clarity on all the questions arising without a political conclusion to what is a political debate - namely, whether independent schools should have the benefit of the fiscal advantages available to charities, not whether they are, legally, charities.”

‘A missed opportunity’

The Education Review Group, the other intervener in the hearing, described the decision as a “missed opportunity”.  It pointed out that the Tribunal described as “astonishing” the level of luxury provided by some schools and said it would have liked the Tribunal to go further in stating what schools should and should not do to prove they provide public benefit.

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